Second officer in BART shooting under investigation

OAKLAND — A new investigation into the circumstances surrounding a BART police officer's fatal shooting of Oscar Grant III began over the weekend, as a second officer came under fire for allegedly using excessive force.

In a previously unexamined segment of cell phone video unearthed the week of Grant's death on Jan. 1, an officer appears to walk up to a man who is standing against the wall at the Fruitvale BART station and strike that man with his right hand. Some have called the blow an unprovoked punch, and BART officials responded by announcing a new investigation.

Grant died early New Year's Day when now-former BART police Officer Johannes Mehserle, responding with four other officers to reports of a fight on a train, shot and killed Grant as the Hayward resident lay face down and restrained by another officer. BART police investigated the incident for just under two weeks and turned their findings over to Alameda County District Attorney Tom Orloff's office. Orloff charged Mehserle with second-degree murder.

At no time during that initial investigation did any witnesses or officers raise a complaint about any officer other than Mehserle using unreasonable force, BART spokesman Linton Johnson said.

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Civil rights attorney John Burris, who is representing Grant's family in a $25 million suit against BART, said witnesses he interviewed in the days immediately following the shooting had described the officer in question as punching Grant several times, as well as using "rough language," threatening people and possibly using racial slurs.

BART has declined to identify any of the officers present at the shooting besides Mehserle, citing a request from Orloff's office.

"I take this new allegation of police use of unreasonable force extremely seriously," BART General Manager Dorothy Dugger said in a statement Saturday. "As we said when we completed our preliminary investigation and delivered that to the district attorney, this remains an ongoing investigation."

Burris said the man being struck in the video is Grant. BART could neither confirm nor deny that Sunday.

Whoever it is, the blow appears to be unprovoked but could be lacking context in the video, according to Bob Talbot, a professor at the University of San Francisco School of Law.

"Police are allowed to use reasonable force to make a lawful arrest. That could have existed if they had probable cause to make an arrest," he said. "Reasonable force only, though: if you move past that and use excessive force, you commit a crime. And how we define reasonable force will always change depending on the circumstances. That's why you watch a video. But in that video you catch things out of context, and you can't be 100 percent sure."

The video does not show, for example, what the man is doing with his hands just before the officer strikes him, Talbot said.

"I can't see any self-defense in there," he said. "It didn't look like he was going for a weapon, but I sure couldn't see it from my screen. It's a little fuzzy, but didn't look like anything."

Some news reports have speculated that Orloff could be holding off on charges against the officer to encourage that officer to testify at Mehserle's trial.

"I don't know what (the officer) has said, in terms of what he observed Mehserle doing," Burris said.

"That may be an issue the DA has to deal with. The DA could very well give him immunity in exchange for his testimony. That's a tough call," Burris said. "Oscar's family thinks the man should be prosecuted but don't want to do anything that would hinder the murder charge against Mehserle. They would want anything that gets Mehserle prosecuted and convicted for murder. Any witnesses that support that would be important."